In 1709 (or was it 1710?) the Statute of Anne created the first purpose-built copyright law. This blog, founded just 300 short and unextended years later, is dedicated to all things copyright, warts and all. To contact the 1709 Blog, email Eleonora at eleonorarosati[at]gmail.com

Friday, 30 March 2012

Readers of this Blog who were kids in the 1980s, have a passion for fantasy films or are fans of Michael Ende's books will certainly remember The Never Ending Story. More than the plot of this book/film or mesmerising characters such as Falkor the luck dragon, it is its title (also recalled by La Repubblica) which is appropriate to describe the new developments in the Italian online copyright regulation saga (earlier posts here and here).

Yesterday Italian newspaper La Stampa published what it claimed to be a draft memo/decree (this is not clear yet) prepared by Monti's government to make it clear (according to some commentators, it would be better to say 'allow') that the Italian Communication Authority (AGCOM) may go ahead with its draft online copyright regulation and publish it before its members are replaced next May.

In theory, such a memo/decree, which carries the title Disposizioni interpretative in materia di competenze dell'Autorità per le garanzie nelle comunicazioni' ("Interpretative provisions as to the competences of AGCOM") would be aimed at merely clarifying that the Italian Communication Authority has the competence to adopt its proposed regulation.

As it is unknown who drafted this memo/decree and gave it to La Stampa, this information lacks any official character and the contents may well be changed. However, the draft memo/decree includes a set of provisions which are fairly interesting to read, in that they set out guidelines as to the contents of the regulation.

In brief, these are the main points in the alleged Government's draft memo/decree:

(1) AGCOM is to be meant as the competent 'administrative authority' pursuant to Articles 14 to 17 of Legislative Decree No 70, 9 April 2003, by which Italy transposed into national law Articles 12 to 15of the E-Commerce Directive [this, according to some commentators, would reduce the competences of two other administrative authorities, these being the Competition and Data Protection Authorities];

(2) AGCOM shall be competent to settle any controversies concerning the application of the Italian Copyright Act (Law No 633, 22 April 1941) over the internet [this point does need clarification, as it would be very difficult to sustain the legitimacy of a proviso which forbids the parties to a controversy from commencing court proceedings at any stage during this procedure];

(3) Within 30 days from the entry into force of the Government's (memo/)decree, AGCOM shall adopt a regulation which includes notice and takedown procedures relating to any contents made available in Italy by providers located anywhere in the world, and which are contrary to the Italian Copyright Act [this raises a few private international law issues, also because the law is far from settled in relation to infringements carried out over the internet];

(4) In case of non-compliance with AGCOM's orders (including cease-and-desist), fines pursuant to Article 1(30-31) of Law No 249, 31 July 1997, shall be issued [fines due to non-compliance with AGCOM's requests for documents, data and information, range between EUR 516,46 and EUR 103.291,38; fines due to non-compliance with AGCOM's orders (including cease-and-desist) range between EUR 10.329,14 and EUR 258.228,45];

(5) In case of serious infringements or reiteration of illicit activities, in addition to the fines just mentioned, AGCOM shall terminate access to the service [perhaps to be intended as internet access tout court, in pure Hadopi-style?] or, only if possible [does this mean that impeding 'access to the service' comes first?], to the contents made available and which infringe the Italian Copyright Act;

(6) AGCOM shall promote initiatives aimed at encouraging the adoption of codes of conduct to regulate the relationship between copyright owners and service providers, in order to encourage the legal supply of contents over electronic communication networks;

(7) Article 1(5-6) of Law No 128, 21 May 2004 shall be no longer in force [Article 1(5) provides for service providers, following a court order, to communicate to the police any information which may serve to locate websites and those responsible for such illicit activities; Article 1(6) provides for service providers, following a court order, to either impede access to infringing contents or remove such contents].

It is certainly an excellent thing that the future of copyright is discussed widely in Italy, also among the general public. However, as often happens, over-simplifications and/or exaggerations should be avoided, in that the issues on the table are heterogeneous and call for special attention. The Never Ending Story was about the charming world of Fantasia, which was threatened by a force called The Nothing, a void of darkness which consumed everything. By reading some comments in the general press, one may get the impression that also Italy is threatened by The Nothing, also known as copyright enforcement over the internet.

Thursday, 29 March 2012

Out of deference to Bauhaus's copyright
sensitivities, we bring you not a Bauhaus
but a "bow-wow" house, complete with
German shepherd ...

Today Advocate General Jaaskinen gave the Court of Justice of the European Union the benefit of his Opinion in Case C-5/11Criminal proceedings against Titus Donner, a reference for a preliminary ruling from the Bundesgerichtshof, Germany.

In short, Titus Donner, a German national, was involved in the distribution of Bauhaus furniture which was reproduced by an Italian company Dimensione, whereby furniture was delivered from Italy to a warehouse in Germany from which Donner’s company, Inspem, delivered them to local purchasers. After the public prosecutor’s office brought charges of commercial exploitation without permission of works protected by copyright, Donner paid a fine of EUR 120,000 and the Amtsgericht München decided to take no further action.

Subsequently Dimensione acquired a warehouse in Italy. Each item it sold was marked with the name, address or order number of the person who had ordered it. Under the conditions of sale, purchasers had to make their own collection arrangement. However, if they couldn't or didn't want to, Dimensione advised them to contact Inspem. Dimensione’s advertising material stated that the purchasers would be acquiring the items in Italy, but would only pay for them upon delivery in Germany. Dimensione sent its invoices directly to the purchasers. When collecting the items, Inspem’s drivers would pay Dimensione for them, securing reimbursement from the purchaser upon delivery in Germany, along with their delivery fee. In the event that a purchaser declined to pay, Inspem would return the items to Dimensione and would be fully reimbursed.

Under the contract between Dimensione and its customers, which was governed by Italian law, ownership passed in Italy upon individualisation of the item sold to a named customer at Dimensione’s warehouse. In contrast, under German law the transfer of ownership only occurs when the purchaser possesses the goods and enjoys the de facto power to dispose of them -- as occurred in Germany when the buyers received the items from Inspem’s drivers against payment.

A fresh prosecution in respect of this new arrangement led to Donner's conviction before the Landgericht München II of aiding and abetting the prohibited commercial exploitation of copyright protected works. The court also found that Dimensione had distributed copies of works by putting the items into circulation. Donner appealed to the Bundesgerichtshof, arguing that the prosecution amounted to a breach of the Article 34 TFEU prohibition on measures having an equivalent effect to quantitative restrictions on imports, and resulted in artificial partitioning of the markets. The prosecutor agreed -- but said that this restriction was justifiable by reference to Article 36 TFEU and the imperative need to protect industrial and commercial property. The Bundesgerichtshof, which this blogger suspects knew the answer to this question all along, considered it necessary to refer the following question for a preliminary ruling.

‘Are Articles 34 and 36 TFEU governing the free movement of goods to be interpreted as precluding the criminal offence of aiding and abetting the prohibited distribution of copyright protected works resulting from the application of national criminal law where, on a cross border sale of a work that is copyright protected in Germany

– that work is taken to Germany from a Member State of the European Union and de facto power of disposal thereof is transferred in Germany,

– but the transfer of ownership took place in the other Member State in which copyright protection for the work did not exist or was unenforceable?’

The Advocate General has advised the CJEU to rule as follows:

"Articles 34 and 36 TFEU governing the free movement of goods do not preclude the criminal offence of aiding and abetting the prohibited distribution of copies of copyright protected works resulting from the application of national criminal law where copies of copyright protected works are distributed by sale in a Member State by making them available to the public in that Member State through a cross border distance selling arrangement originating in another Member State of the European Union in which copyright protection for the work did not exist or was unenforceable".

Unless the CFEU has a brainstorm and decides to uproot its well-established doctrine in Case 341/87 EMI Electrola [1989] ECR 79, this looks like a win for the prosecution.

Wednesday, 28 March 2012

A few days ago this Blogreportedon the uncertain fate of the online
copyright regulation the Italian Communication Authority (AGCOM) has been
trying to adopt over the last year and a half.

Last week's hearing of AGCOM President
Corrado Calabrò before two commissions of the Italian Senate has left many
copyright owners pretty disappointed, in that it seemed that the AGCOM would not adopt any regulation in the immediate future.

Now the scenario appears to have changed.
AGCOM may be keen to issue its online copyright regulation before its
members are replaced next May.

In a letter sent to Italian newspaperCorriere della Seralast Saturday, as well as during
another hearing at the Senate this morning, Calabrò made itclearthat AGCOM has not given up the idea of
going ahead with its regulation.

Antonio Catricalà

However, the Communication Authority is
said to be waiting for Mario Monti's Government to say whether AGCOM is
actually competent to adopt a general copyright regulation. A member of the Government and former President of the Italian Competition AuthorityAntonio Catricalà is apparently working on this. What is needed is an
interpretation of AGCOM's powers to this end, as resulting from:

Via Robert Bolick comes this query from Martyn Daniels of the Read 2.0 Discussion Group, a mix of publishers, librarians, techies and e-reading enthusiasts. The comments of the 1709 Blog team and their readers are requested. The issue is as follows:

"I had an interesting discussion with someone managing a major (Video,TV, film) rights/production who has been challenged with a secondary agent who they use creating and selling what they deem as ‘app rights’ to a publisher which contain more than the permitted minutes within the hour of moving image footage laid down in the contract (ie the app contains x minutes film footage which is way over that permitted without commercial agreement) . The agent is trying to claim that ‘app rights’ are outside and separate. The owners are adopting a hard line and saying no way and see their element within the app is governed by the contract and do not recognise an app right.

I thought this starts to explore a new rights issue which at the outset looks simple but as we slice and dice, cut and paste, sample and mould new digital works based on multi media how do we control the rights to the elements and infringement? To date we have merely poured content into a new container but as we enhance that with secondary materials how do we control the rights elements and is there an increase in the levels of rights that need to be managed and what do we believe is an app and does it have rights which can overrule primary ones?"

This blogger is in the process of surrendering his old phone in favour of a smart new device that runs apps. Once he has had a chance to become better acquainted with them personally, he will feel more confident to express one or more opinions about them and the legal issues they stir up. In the meantime he is happy to hear from his colleagues and from readers, from whom he is more than willing to learn.

Tuesday, 27 March 2012

Reuters report that Spain’s new anti-piracy laws – the so called ‘Sinde’ web blocking law and procedures may be having little effect with users switching away from websites providing links to copyrighted material, which were targeted by the law, towards peer-to-peer or content-sharing services instead. It seems that the closure of the MegaUpload site has simply accelerated the trend, and many of the pirates have simply re-directed their activity towards peer-to-peer platforms to access copyrighted material. P2P platforms are not covered by the new legislation and have been protected in Spanish courts provided they are “not for profit”. About half of Spanish adults admit to having downloaded audiovisual content from the Internet for free according to a poll by the state-run CIS public opinion surveyor.

In other news, Microsoft has confirmed that users of its instant messaging app are now being stopped from sharing links to The Pirate Bay, though the IT firm says the block has been instigated because of malware fears rather than any bid to block Bay-enabled copyright infringement. A spokesman for the company told The Register: "We block instant messages if they contain malicious or spam URLs based on intelligence algorithms, third-party sources, and/or user complaints. Pirate Bay URLs were flagged by one or more of these and were consequently blocked".

Billboard reports that Sony BMG has asked a US court to dismiss the latest case filed against the label by 80s icons Toto, who are looking to challenge the basis of the way in which their digital download royalties are accounted for. With The Temptations having recently launched a new action against Universal, who have lost one case in the ‘Eminen’ action (actually brought by the rapper’s producers FBT), Sony BMG has now agreed to pay $7.95 million to settle a similar class action (with Cheap Trick and the Allman Brothers amongst others) but is separately defending the lawsuit brought by Toto, who recorded the hit song "Africa". The music company simply says the band is "dissatisfied with the bargain that it struck."

Billboard report that Sony have said that the argument that artistes should receive a share of ‘licence’ income from digital sales rather than a (much lower) per unit sales royalty is incorrect in this case because the "license" vs. "sale" dispute misses a third word -- "lease" -- which could play a role in determining whether musicians get roughly 50 percent of digital income or merely about 15 percent of the net sales price, as it seems that Sony Music's contracts with musicians appear to have "lease" provisions instead of "licensing" provisions. Is there a difference? Well, Sony says “yes” and Sony has now submitted a motion to dismiss Toto's lawsuit.

The attack on the claim is twofold. Firstly in a memorandum to the court, Sony claims that in 2002 the parties amended their agreement to set forth a new royalty rate specifically applicable to "all records made for digital playback."

If that’s not enough, Sony also challenges the ‘sale vs licence’ argument saying "In an attempt to sidestep this ['lease'] obstacle to its claim, plaintiff alleges that 'license' and 'lease' simply mean the same thing," adding "But plaintiff's allegations cannot alter the plain meaning of the contract. As a matter of both ordinary English and contractual usage, the terms 'license' and 'lease' are not synonymous" pointing to the Black's Law Dictionary, the Webster's Third New International Dictionary, and the Oxford English Dictionary to support the idea that "lease" and "license" are different. Sony also seem to be relying on the initial judgment in the Allman Brother (now settled) claim although I am not sure this is that wise, as a later judgment allowed the earlier class action to be amended to allege that Sony "leases" its catalogue to download providers like Apple's iTunes.

Like Billboard, I am not quite sure of what the ramifications are of separating "licensing" activity in media and entertainment from leasing activity, but as Billboard say “The semantic argument might seem trivial, but it's worth millions”.

In "The Fundamental Freedom of Furnishings", Hugo posted a short note on this weblog on Case C-5/11 Donner. The question on which the German Bundesgerichtshof seeks a preliminary ruling from the Court of Justice of the European Union is this:

"“Are Articles 34 and 36 TFEU governing the free movement of goods to be interpreted as precluding the criminal offence of aiding and abetting the prohibited distribution of copyright-protected works resulting from the application of national criminal law where, on a cross-border sale of a work that is copyright protected in Germany
—that work is taken to Germany from a Member State of the European Union and de facto power of disposal thereof is transferred in Germany,
—but the transfer of ownership took place in the other Member State in which copyright protection for the work did not exist or was unenforceable?”".

Advocate General Jääskinen will be delivering an Opinion this Thursday. If you're lucky you may even get to find out what that Opinion is all about because, while the language of the reference is given as German, the Curia websites currently records the language of the Opinion as "Nil".

Yesterday the High Court of Justice (Chancery Division), England and Wales, ordered telecom company O2 to hand personal details of more than 9,000 broadband subscribers to Golden Eye International and pornography firmBen DoverProductions, on account of the illicit download of porn films, reports The Telegraph.

The 152-paragraphdecisionof Arnold J followed an application by Golden Eye and thirteen other claimants for aNorwich Pharmacal Order (as first elaborated in Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133) against O2,seeking to obtain disclosure of the names and addresses of O2 customers who are alleged to have committed infringements of copyright through peer-to-peer filesharing using the BitTorrent protocol.

The applicants were divided into two groups.

The first group included Golden Eye and Ben Dover Productions. While the latter is the owner of the copyright in a series of pornographic films starring Ben Dover and which were released between 1995 and 2008, Golden Eye enjoys a royalty-free worldwide exclusive licence of all copyrights and rights in these films, as well as marketing a range of associated merchandise under the Ben Dover trade mark.

The second group of claimants are copyright holders in other pornographic films, who had entered into a 2-year licensing agreement with Golden Eye.

Porn veteran Ben Dover
(copyright News Group Newspapers Ltd)

Golden Eye had previously applied and obtained similar orders against British Telecommunications in 2009, and BSkyB in 2010. It is worth recalling (para 103) that, from 2009, ISPs have been required by UK law to retain records of which customer was using which IP address at any particular time for a period of one year. So far, Golden Eye has only brought three claims for infringement arising out of information obtained by virtue of the 2009 and 2010 Norwich Pharmacal orders. All of them were issued in the Northampton County Court, in at least two cases using the Money Claim Online system (MCOL). According to Arnold J MCOL is unsuitable for copyright infringement claims and should not be used for that purpose.

In the case of O2, Arnold J found that there was a prima facie case that each of the respective subscribers associated with the IP addresses provided by the claimants had illicitly copied one or more of each of the applicants’ works for the purpose of making them available via file-sharing websites for third parties to download. The claimants undertook to the Court that they have a genuine intention to pursue a claim against any of the subscribers with whom a compromise is not reached and where there is a legitimate and appropriate legal basis to do so. Accordingly, Arnold J ordered O2 to disclose "the name and postal address of the registered owner or owners of each of the internet account or accounts that were assigned to the internet protocol address".

In parallel to this, among the other things, Arnold J ordered Golden Eye to pay into an escrow account to be held by the respondent's solicitors a sum equal to £2.20 per IP address requested with £2500 security costs.

In no case, however, shall the applicants disclose to the general public, by making or issuing a statement to the media, the names or addresses of any person or persons whose identity is made known as a result of the grant of the relief ordered until after (1) the receiving the express consent of the person concerned, or (2) the applicants have commenced proceedings to enforce their copyright and related rights against such person or persons.

A discreet notice will be sent to P2P file-sharers

Of particular interest is the part of the judgment (paras 116 ff) which deals with the proportionality of the order sought by Golden Eye and the other applicants. In particular, Arnold J recalled that inPromusicaeandScarlet(and most recently inNetlog) the CJEU held that, when adopting measures to protect copyright owners against online infringement, national courts must strike a fair balance between the protection of intellectual property rights guaranteed by Article 17(2) of theCharter and the protection of the fundamental rights of individuals and, in particular, the rights safeguarded by Articles 7 [Respect for private and family life] and 8 [Protection of personal data]. This said, Arnold J held (para 117) that the correct approach to considering proportionality can be summarised as follows:

"(i) neither Article[in the Charter]as such has precedence over the other; (ii) where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary; (iii) the justifications for interfering with or restricting each right must be taken into account; (iv) finally, the proportionality test – or 'ultimate balancing test' - must be applied to each.”

In this case the claimants were owners of copyrights which had been infringed on a substantial scale by individuals who engaged in P2P filesharing. Arnold J made it clear (para 145) that "[t]he mere fact that the copyright works are pornographic films is no reason to refuse the grant of relief, since there is no suggestion that they are obscene or otherwise unlawful." The only way in which the copyright owners could ascertain the identify of those individuals and seek compensation for past infringements would be by (i) obtaining disclosure of the names and addresses of the subscribers, (ii) writing letters of claim to them seeking voluntary settlements and (iii) where it is cost-effective to do so, bringing proceedings for infringement.

Having observed that the grant of the order sought by the applicants would invade the privacy of O2 subscribers and impinge upon their data protection rights, Arnold J considered first the claim of Golden Eye and Ben Dover Productions. The judge found that these had a good arguable case that many of the relevant subscribers had infringed their copyrights. Therefore, as the claimants' interests in enforcing their copyrights outweigh O2 subscribers' interest in protecting their privacy and data protection rights, it was proportionate to order O2 to disclose its subscribers' personal details.

On the contrary, Arnold J rejected the claim of the other applicants, in that it would have not been appropriate, when balancing the competing interests, to make an order which endorsed an arrangement under which the other claimants surrendered total control of the litigation to Golden Eye. Such an order would have been tantamount to “the court sanctioning the sale of O2 subscribers' privacy and data protection rights to the highest bidder”.

Sunday, 25 March 2012

There's a little bit of news from the United Kingdom which will excite everyone who enjoys reading secondary legislation: the Copyright and Performances (Application to Other Countries) Order 2012 (SI 2012/799) has been laid before Parliament and will enter into force on 6 April 2012 unless anything spectacular happens to it in the meantime.

What does this Order do? It provides a revised consolidated list of the protection accorded in the UK to works emanating from countries with which the UK now has a copyright relationship following the accession of those countries to conventions or treaties to which the UK is already committed:

* Yemen (Berne Convention);

* Bosnia and Herzegovina, Liberia, the Republic of Korea and Tajikistan (Rome Convention);

* Trinidad and Tobago, Morocco and Saint Vincent and the Grenadines (WIPO Performances and Phonograms Treaty);

* Saudi Arabia (TRIPS).

The protection accorded under the UK's Copyright, Designs and Patents Act 1988, as endlessly amended, corresponds to the works that are the subject of the respective conventions and treaties.

When this Order comes into effect, it will revoke the Copyright and Performances (Application to Other Countries) Order 2008 and Article 1(3) of the Copyright and Performances (Application to Other Countries) (Amendment) Order 2009.

In an era in which evidence-based law reform is the gold standard and pressure-groups are damned as practitioners of the dark art of lobbynomics, we are beginning to disbelieve a great deal of what we hear from groups and organisations which formerly were our main sources of information. It's therefore worth asking the question: "does the fact that the Alliance Against IP Theft is both pro-copyright and pro-enforcement undermine its objectivity when it comes to making pronouncements about the economic impact of copyright reform proposals?" Arguably the answer is "no" when the opinion which it articulates comes from a respectable, objective and methodologically rigorous economics research body such as Oxford Economics.

According to the Alliance:

"Copyright reform won’t deliver predicted growth

The Alliance Against IP Theft has [on Wednesday] published an analysis from Oxford Economics of the Government’s Consultation on Copyright which found its economics seriously lacking. ...

The Government is looking to the recommendations in the Consultation to encourage economic growth and increase UK GDP. In this first detailed economic analysis of specific aspects of the Consultation, Oxford Economics finds that that the assumptions made are overly optimistic in a number of cases, lack economic rigour, and fail to adequately analyse of the harm they may cause to existing industries that rely on copyright.

The report found that:

• A number of the Consultation’s Economic Impact Assessments lack neutrality and fail to take the interests of producers of content sufficiently into account. Whilst time appears to have been taken attempting to quantify the benefits of reform, there has been little analysis of the costs associated with the reform.
• There is a lack of empirical evidence to suggest that copyright is economically inefficient to start with [interesting point: this blogger has been led to believe that economic inefficiency is a given in the case of every IP right, since it distorts market efficiency by its mere existence. Can we put economics to demonstrate empirical proof of the validity of their own discipline?].
• Several of the Impact Assessments fail to provide sufficient evidence to warrant changes to the copyright framework.
• The Consultation’s predictions regarding the growth that would accrue from changes to the copyright framework may be overly optimistic.

Commenting on the analysis, Susie Winter, Director General of the Alliance Against IP Theft said:

“Today’s analysis supports what we all instinctively knew – that a number of the Government’s proposals for reform are based on bad economics and won’t deliver anywhere near the predicted economic growth.

“We believe that copyright sectors can contribute to the UK’s economic growth, but the Consultation is looking in the wrong place to stimulate increased GDP. If these reforms go ahead they are likely to be damaging to our economy and simply siphon off money to global tech giants from our British creators.

We urge the Government to think again before ploughing ahead with its proposals”.

Given the tight time limits imposed on the UK's copyright reform exercise, it would be surprising if any cogent evidence in support or or against copyright reform could be obtained, analysed and integrated into a single picture. Even if it could, it would need to be separated out again since every market sector behaves differently while IP legislation is presumed to be enacted on the basis of one-size-fits-every-market.

Rather than keeping on taking short, staccato stabs at copyright reform, as the UK government has been doing on a regular basis over the past decade or so, wouldn't it have been better to let reform progress at a pace at which the competing voices of creators, consumers, performers, investors and carriers can be heard and properly understood? The very worst that could have happened is that the current system would carry on until a replacement was devised to replace it.

You can read the Oxford Economics report in full here (thanks go to Amy Bourke for finding the link).

Thursday, 22 March 2012

Though I've not seen it till today, I expect that the infographic featured below, kindly supplied by BackgroundCheck, has been doing the rounds and I apologise in advance if readers of this blog are already familiar with it. The True Cost of Piracy [now, that's a title which is a hostage to fortune] is quite US-flavoured. It's also quite eye-catching from an aesthetic point of view and raises lots of discussion points. Infographics like this always remind me of the diagrams of the human digestive system which I had to study at secondary school. From a didactic point of view, their lay-out makes them both easy to follow, and thus absorb, but also easier to dissect when criticising their content.

Readers of this Blog who have both a passion for Italian affairs (no, those of former Prime Minister Silvio Berlusconi are not among them), and good command of Dante's language will have followed the eighteen-month saga concerning the proposal of the Italian Communication Authority (Autorità per le Garanzie nelle Comunicazioni - AGCOM) to adopt an administrative regulation to protect copyright over the internet.

The main criticism against AGCOM's proposal concerned the actual lack of competence of an administrative authority such as AGCOM to legislate in the area of copyright. Although Article 182-bis of the Italian Copyright Act (Legge No 633, 22 April 1941) provides that AGCOM and Italian collecting society SIAE (Società Italiana degli Autori ed Editori) are entitled to prevent and stop copyright infringements, it has been argued that AGCOM could have not possibly adopted a general copyright regulation.

AGCOM President Corrado Calabrò

Article 6 of Legislative Decree No 44, 15 March 2010, by which Italy implemented Directive 2007/65 (the so called Audiovisual Media Services Directive) provides AGCOM with a regulatory competence in the field of copyright, but this is limited to audiovisual media services. The main purpose of the regulation would be to institute a simple, quick and proportionate procedure for granting protection against copyright violations.

To this end, AGCOM proposed a complaint procedure composed of the following phases. First, complaints of alleged violations would be brought by copyright owners to service providers, identifying infringing activities or information and requesting their removal. If the service provider did not proceed to remove suchcontents within 48 hours of the request, AGCOM would verify, by questioning only the content owner and the service provider, whether the contents were actually illicit and, if so, order the removal of the files from the server or the links to external websites.

This procedure, according to AGCOM, would have been akin (?) to the notice and takedown system envisaged by §512 of the US Digital Millennium Copyright Act (DMCA). Anyway, following a series of protests, the proposed regulation was amended and in July 2011 a new draft regulation was published.

In contrast with the previous version, the new draft regulation provided for the procedure before AGCOM to be alternative to court proceedings. In particular, no procedure before AGCOM could have commenced (a) before the end of the actual "notice and takedown" procedure between the ISP and the right holder; and (b) if the right holder had decided to commence court proceedings.

The logo of one of the protests
organised against the
draft AGCOM regulation last summer

This new draft Regulation has been subject to criticisms, in relation to fundamental rights of the users, freedom of the ISPs to conduct their businesses, jurisdiction over Italian-directed foreign websites, etc.

Yesterday, during a hearing before two commissions of the Italian Senate, AGCOM President Corrado Calabròannounced that it is unlikely that AGCOM will adopt any regulation on copyright over electronic communication networks in the immediate future.

Calabrò made it clear that AGCOM would be competent to adopt such regulation - inter alia - in light of the provisions contained in Directive 2000/31 (the Ecommerce Directive), as implemented in Italy by Legislative Decree No 70, 9 April 2003. In addition, the proposed Regulation would be in line, said Calabrò, with recent CJEU case law (see 1709 Blog posts here and here), in that it would impose on ISPs neither a general obligation to monitor, nor the installation of filtering systems.

This said, however, AGCOM President deemed it necessary for the Italian Parliament first to revise Italian copyright law (the current statute dates back to 1941). Moreover, he added "since copyright is borderless, the most appropriate venue for new copyright laws - at least as far as general guidelines are concerned - would be the EU, if not the UN" [did Calabrò mean WIPO, this blogger wonders].

"We are fed up with people who keep asking
whether we are boys or girls! Let's talk
about online copyright instead ..."

So it seems that nothing will happen, as current members of AGCOM will be replaced shortly.

Right holders were pretty upset because of what happened yesterday at the Senate. In the words of Enzo Mazza, chairman of FIMI (Federazione Industria Musicale Italiana), "More than two years have been dedicated to hearings, draft regulations and debates over the gender of angels and now they say they lack competence to this end? It's ridicolous!"

Perhaps all this story is just good to revert to Samuel Beckett and say that here too "The sun shone, having no alternative, on the nothing new".

Tuesday, 20 March 2012

As Pirate Bay co-founder Carl Lundstrom prepares to serve his four month prison sentence under house arrest in Sweden, it seems the current Pirate Bay organisers are planning to put copies of their database onto servers in the sky - on "small airborne drones" connected to the mobile internet - that would have to be literally “shot down” to take the site offline. A blog post by a certain MrSpock on the Swedish site said: “We can’t limit ourselves to hosting things just on land anymore. These Low Orbit Server Stations (LOSS) are just the first attempt. With modern radio transmitters we can get over 100Mbps per node up to 50km away. For the proxy system we’re building, that’s more than enough. This way our machines will have to be shut down with aeroplanes in order to shut down the system. A real act of war.”

Monday, 19 March 2012

My new favourite copyright read, the Hindustan Times, reports that just as the song Pungi Bajaa Kar from Saif Ali Khan's soon to be released spy thriller, the re-make of Agent Vinod, is gaining popularity, an Iranian band has slapped a legal notice on music director Pritam Chakraborty and the film’s distributors for alleged copyright violation. The band, Barobax Corp. was founded in 2003 by three Iranian nationals Kashayar Haghgoo, Kevian Haghgoo and Hamid Farouzmand and claim that they had already released the song as a track on their 2010 album Soosan Khanoom saying “On March 12 this year, the band came across the promotions of the movie Agent Vinod on satellite television in Iran. The song Pungi Baja De was being aired. On listening to the song, the band realised that the initial portion of the song is lifted without any change from the title song of their album" further stating "We demand the music director, producers and directors to refrain from releasing the song in the movie or use it to promote the movie. Failing to do so, the band shall be compelled to initiate proceedings to seek a restraining order and necessary compensation".

According to the notice, the band is the owner of the copyright of the song and recording Soosan Khanoom which was registered under the Copyright Act in Canada on June 30 2011. Alongside Pritam, the notice has also been served to Eros International Media, Illuminati Films Private Ltd and Super Cassettes Ltd. The movie is due for release on March 23rd.

Sunday, 18 March 2012

As is well known, on 14 March (3.14 ... got it?) every year is Pi Day. This is the day when the world celebrates fascinating mathematical constant pi or π, which is approximately equal to 3.14. It was in 2009 that the US House of Representatives agreed that the US should also have an official Pi Day.

Pi Day has been celebrated every year since 1988 at the San Francisco Exploratorium, with staff and visitors marching around a circular space and eating fruit pies, reports CNN's Eatocracy. Sadly enough, celebrations were spoiled last year, when a copyright infringement lawsuit was brought before the US District Court for the District of Nebraska.

The plaintiff, Nebraska's resident and jazz musician Lars Erickson, sued Oregon's resident Michael John Blake, claiming copyright infringement over a US copyright registered musical work Pi Symphony, which had been created in 1992.

At the beginning of 2011, Blake published on YouTube a video featuring his work What Pi Sounds Like. This had translated Pi's first few dozen digits into musical notes. The video was pretty successful and went viral. In the words of New Scientist, Blake found himself a nerd celebrity, fielding emails and phone calls from multiple media outlets. However, promptly upon learning about Blake's work, Erickson contacted Blake to inform him that What Pi Sounds Like sounded substantially similar to Pi Symphony and therefore amounted to an infringement of Erickson's copyright.

Initially, Blake agreed to work with Erickson in an effort to avoid any infringement claims. This did not last long since, in April 2011, Blake re-published What Pi Sounds Like on YouTube and offered copies of his work for sale on iTunes and CD Baby websites. The removal of his creation from YouTube had been "like being stabbed", said Blake. "This great thing I'd created, and then watched explode, was gone. I felt robbed", he added.

As a consequence, Erickson commenced proceedings before the US District Court for the District of Nebraska. The plaintiff claimed both copyright infringement and unfair competition and sought actual damages, disgorgement of profits, statutory damages, and reasonable expenses and attorneys' fees.

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Following issues as to whether the Court had personal jurisdiction over Blake as per Federal Rules of Civil Procedure 12(b)(2) and (3), the action was transferred to the US District Court for the District of Oregon. There, appropriately on Pi Day 2012, US District Court Judge Michael H Simon dismissed the claim for copyright infringement. As reported by New Scientist, the judge found that "Pi is a non-copyrightable fact, and the transcription of pi to music is a non-copyrightable idea", also because "The resulting pattern of notes is an expression that merges with the non-copyrightable idea of putting pi to music." The Judge also held that the two musical compositions differed sufficiently as regards tempo, musical phrasing and harmonies.

Although Pi is a constant which is also constantly challenged and some people think we should get rid of it in favour of Tau, this irrational number is still there and remains one of the most beloved constants in the world of mathematics. In conclusion, Pi is a bit like the endless saga of the idea/expression dichotomy (IED) in the realm of copyright. Regrettably enough, there is still no IED Day to celebrate with fruit pies.

A copy of Judge Simon's Opinion is available here. Thanks to Joseph Gratz for letting the 1709 Blog know.

The High Court in Calcutta, India, has responded to a complaint from music industry trade body IMI by ruling that access to 104 alleged copyright-infringing music websites must be blocked at ISP level. India's Internet service providers will utilize DNS and IP-based blocking as well as “deep packet inspection” to block access to the sites which include coolgoose.com, songs.pk and bollywood-hits.com.

Frances Moore, chief executive of worldwide recording industry rights group IFPI said “"This decision is a victory for the rule of law online and a blow to those illegal businesses that want to build revenues by violating the rights of others" adding "It highlights the importance the Indian courts place on the creative industries and their contribution to the economy. The court ruled that blocking is a proportionate and effective way to tackle website piracy. The Indian government should build on this progress by moving forward legislation to effectively tackle all forms of digital piracy to enable the country's digital music market to reach its full potential."

With a large proportion of music sales in India tied to the movie industry both sectors will no doubt be pleased with the court’s actions. "There is a lot to be done as there is a long battle ahead to curb piracy," IMI Chief Adviser JF Ribeiro told the Hindustan Times, saying "The IMI is now focusing on implementation of the order and ensuring that all unauthorised websites which offer downloading of music for free without license are banned and blocked."

Friday, 16 March 2012

A distinguished member of the intellctual property community has contacted this weblog with a question relating to Dutch copyright law. She writes:

"This Dutch opinion was brought to my attention but, because it's in Dutch, I am not quite sure what it says. I'm told that the design of stripes on a police car was considered a valid copyright work, which means that it has ramifications that extend far beyond trade mark law, i.e., stopping anyone else from using the same stripes anywhere. Can you explain it to us?"

Thursday, 15 March 2012

﻿As our readers may remember, in summer last year some major US ISPs (AT&T, Cablevision, Comcast, Time Warner Cable and Verizon) entered an agreement with music and film industries to adopt and implement policies aimed at discouraging their customers from illegally downloading copyright-protected materials (see Ben's post here).

Since then, this agreement has been referred to as 'graduated response' or, as Ars Technica called it, 'six strikes' enforcement plan.

When entering the agreement, ISPs made it clear that they would protect their subscribers' privacy and not filter or monitor their own networks for infringement. In addition, it was agreed that ISPs would never terminate an Internet connection entirely, or otherwise interfere with subscribers' ability to receive phone calls and emails.

As explained in Time Magazine, this is how the six strikes policy would work:

1)If a copyright owner complains to an ISP (presumably, based on sniffing out IP addresses through BitTorrent),then that service provider sends an online alert such as an email to the subscriber. The alert explains how to secure a wireless network, how to avoid copyright violations in the future and how to lawfully obtain content in the future.2) A second alert may follow if illicit file-sharing persists, or the ISP may move on to the next alert.3)With the third alert, there will be some kind of mechanism (like a pop-up notice or landing page) to ensure that the subscriber received the message.4) Another alert. Same drill as the last one.5) On the fifth alert, the ISP may take action, such as temporarily reducing connection speeds or requiring the user to review and respond to educational information on copyright. The ISP may also skip the mitigation measures and just issue another alert.6) By the sixth alert, all participating ISPs will either throttle the user or require educational measures. The entertainment industry doesn’t expect that many people will persist with copyright violations at this point.

Since the six strikes policy was adopted, however, the parties to the agreement have gone rather quiet … Until yesterday, at least.

It was not easy to find
skilled players to develop
an efficient six strikes
infrastructure

As explained by Sherman, this is because the six strikes policy would have taken a year to set up, in that "each ISP has to develop their infrastructure for automating the system". They need this "for establishing the database so they can keep track of repeat infringers, so they know that this is the first notice or the third notice. Every ISP has to do it differently depending on the architecture of its particular network. Some are nearing completion and others are a little further from completion."

It will be interesting to see the six strikes policy actually in force, especially now that proposed legislative initiatives such as SOPAand PIPA have never been least popular, both in the US and abroad.

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